Professor Ertman presents as the “official story” the notion
that contracts law is a strict-liability regime and that the state of mind of
the breaching party ought to have no role in the assessment of damages.As Justice Holmes put it, “the wicked
contract-breaker should pay mo more in damages than the innocent and the pure
in heart.”But that official story
is supplemented, as is often the case in contracts law, with numerous
exceptions in which courts do consider fault either in determining liability or
in assessing damages.Professor
Ertman argues that these exceptions facilitate rather than undermine contracts
law by facilitating ex ante planning.

The chapter comes complete with its own Venn diagram and
with some colorful metaphors to help the reader conceptualize the relationship
between contract and fault, between contracts damages and tort damages, and
between public and private mechanisms for social regulation.But Professor Ertman also hammers her
thesis home with evidence from the Restatement (2d) of Contracts, the Uniform
Commercial Code and case law to demonstrate that there have always been
exceptions to the general rule that contracts law is not about fault.R.2d § 90 permits recovery based
on promissory estoppel and thus incorporates a notion of fault to the extent
that promisors induce reasonable reliance.UCC § 2-713 permits additional damages in cases of willful
breach.In Jacob & Youngs v. Kent, Judge Cardozo would have awarded
damages but for his finding that there was an “innocent breach of an
inessential term.”

In the final section of her chapter, Professor Ertman draws
on George Lakoff’s work on body-based metaphors to suggest ways in which
contracts doctrine benefits from the supplement fault-based theories provide to
the general strict-liability regime that constitutes the “official story” of
contract law.She concludes that
while the official story “buttresses the planning or certainty side of contract
law,” the unofficial story tempers the law by permitting considerations of
fault, thus preventing contracts law from encouraging opportunistic breaches
that would undermine the goal of certainty.

Professor Ertman’s chapter is short, but it provides a very useful
framework that contracts profs could utilize to help students organize their
ideas about contracts damages.